P. v. Melendez

Filed 1/15/10 P. v. Melendez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Reversed in part and affirmed in part.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda

Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Janet Melizandy Melendez appeals from a judgment after a jury convicted her of unlawfully taking a vehicle with a prior conviction and grand theft auto, and found true the street terrorism enhancements as to those offenses. She argues (1) insufficient evidence supports the jurys findings on the street terrorism enhancements, (2) the trial court erroneously admitted gang expert testimony, (3) the court erroneously denied her new trial motion, and (4) the court erroneously ordered her to pay the victim $130 in restitution. Because we conclude insufficient evidence supports the jurys findings on the street terrorism enhancements and we reverse those findings, we need not address her claims the court erroneously admitted gang expert testimony and denied her new trial motion. Her claim the court awarded restitution in an incorrect amount has no merit, and we affirm the judgment in all other respects.

FACTS

Jenna Tripp parked her 1991 Toyota Camry at the Westminster Mall. When her shift ended that evening, her car was gone. She had not given anyone permission to drive her car. She called the police.

The next morning, Officer Joseph Marty was on patrol in uniform on a marked patrol motorcycle when he saw the driver of what was later determined to be Tripps car drive straight from the left turn lane. Marty followed the car and radioed dispatch with the license plate number. When the driver stopped in traffic, the male passenger looked at Marty and fled from the car. Marty learned the car was stolen, radioed for backup, pulled over the car, and using his public address system, told the driver to keep her hands in the air. When backup arrived, Marty told the driver to throw the keys out of the window; she threw a pair of scissors out of the window. Marty arrested Melendez. After Marty advised Melendez of her Miranda[1]rights, Melendez said she did not own the car, she took the car the previous day, and she started the car with scissors. When Marty asked why she took the car, Melendez responded she and her boyfriend, Elias Arturo Diaz, the man who fled the car, were homeless and she took the car for shelter. She gave Marty the address of where her family lived.

A little later, a police officer called and told Tripp they found her car, and she went to recover it. The cars engine still ran, and the car was not damaged. Officers found her identification, but her iPod was missing. Her car contained various items that were not hers including the following: A duffel bag with mens clothes and toiletries, a duffel bag with womens clothes and toiletries, a backpack with clothes and books, tools, school supplies, medication, stuffed animals, two camp stoves, a syringe, food wrappers, and other garbage.

An information charged Melendez with unlawfully taking a vehicle with a prior conviction (Veh. Code, 10851, subd. (a); Pen. Code,  666.5, subd. (a)) (count 1);[2] grand theft auto ( 487, subd. (d)(1)) (count 2); receiving a stolen vehicle with a prior conviction (Veh. Code, 496d, subd. (a);  666.5, subd. (a)) (count 3); street terrorism ( 186.22, subd. (a)) (count 5); and misdemeanor driving a motor vehicle without a valid license (Veh. Code, 12500, subd. (a)) (count 6). The information alleged she committed counts 1, 2, and 3 for the benefit of a criminal street gang ( 186.22,

subd. (b)(1)).[3]

At trial, the prosecutor offered Martys testimony. Marty testified that based on his investigation, it did not appear the car had been used in any crime. He stated that based on the items found in the car, it appeared someone had lived in the car.

The prosecutor offered the testimony of Officer Ronald Castillo, a gang expert. After detailing his background, training, and experience, Castillo testified concerning the culture and habits of traditional, multi-generational, turf-oriented Hispanic criminal street gangs. Castillo testified he was familiar with the Brown Thugs and Santa Nita gangs.

He opined Brown Thugs was a criminal street gang because it had a common name or symbol (BTS), it was an ongoing organization, it had approximately

10 members, and its primary activities were assault with a deadly weapon and theft. He stated that in March 2000, a Brown Thugs gang member stole a vehicle (Veh. Code,  10851, subd. (a)), and in June 2001, a Brown Thugs gang member committed assault with force likely to produce great bodily injury ( 245, subd. (a)(1)). He also opined Santa Nita was a criminal street gang and one of its primary activities was vehicle theft.

With respect to Melendez, Castillo said she received gang notices in November 2000, May 2003, November 2003, and December 2006, and on each of those occasions, she admitted to being jumped into the Brown Thugs, and on two of those occasions said her moniker was Dreamer. Castillo also said that in May 2004, Melendez was in a stolen vehicle with another Brown Thugs gang member, and she admitted to being a Brown Thugs gang member. He said she had BTS tattooed on her hand. Based on this evidence, Castillo opined that at the time of the offenses here, Melendez was an active participant in Brown Thugs. As to Diaz, Castillo opined that at the time of the offenses here, he was an active participant in Santa Nita criminal street gang. Based on a hypothetical mirroring the facts of the case, Castillo opined the offenses were done for the benefit of a gang and in association with gang members because gang members use stolen vehicles to commit other crimes.

On cross-examination, Castillo admitted the last time Melendez was in the presence of another Brown Thugs gang member was 2004. Defense counsel asked Castillo whether he had reviewed a November 2003 gang notice where Castillo told an officer she was trying to stop hanging out with Brown Thugs gang members because she found love with Diaz. Defense counsel also asked Castillo whether he reviewed a May 2004 police report where Melendez stated she stopped hanging out with Brown Thugs gang members because she had a two-month-old son. Castillo stated he had reviewed both documents. He admitted there were crimes a gang member could commit that would not benefit a criminal street gang, and not all car thefts are gang related. He also conceded there was no evidence Melendez used the car to commit another crime. When defense counsel reminded Castillo of Melendezs statement to Marty concerning being homeless, and the fact the car looked lived in, Castillo said his opinion was the same.

The jury convicted Melendez of counts 1 and 2, and found true she committed those offenses for the benefit of a criminal street gang. After the trial court denied Melendezs new trial motion, the court sentenced Melendez to prison for the middle term of three years on count 1 and struck the street terrorism enhancement for purposes of sentencing only. Pursuant to section 654, the court stayed sentencing on count 2. The court recommended Melendez be placed in Pregnant and Parenting Womens Alternative Sentencing Program ( 1174.4, subd. (d)). As relevant here, the court ordered her to pay Tripp $130.

DISCUSSION

I. Sufficiency of the Evidence-Section 186.22, subdivision (b)(1)

Melendez argues insufficient evidence supports the jurys true findings on the street terrorism enhancements. We agree.

To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.] (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).) The same standard of review applies to section 186.22, subdivision (b)(1), gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)

The street terrorism enhancement, section 186.22, subdivision (b)(1), increases the punishment for any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang

members . . . . (Italics added.)

A. Criminal Street Gang

Section 186.22, subdivision (f), states: As used in this chapter, criminal street gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.

Section 186.22, subdivision (e), provides: As used in this chapter, pattern of criminal gang activity means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . .

We begin by noting Melendez does not dispute Castillo was qualified to testify as an expert witness on criminal street gangs. And, the testimony of a single witness is sufficient for the proof of any fact. [Citation.] (People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.)

Castillo testified Brown Thugs formed in 1996 and claimed a territory in Santa Ana until another gang, the Lopers, pressured Brown Thugs gang members to join the Lopers. He said some Brown Thugs members joined the Lopers and others did not. He stated that at the time of the offenses here, Brown Thugs was an ongoing organization, its symbol was BTS, and it had 10 members. Contrary to Melendezs assertion, there is no requirement an expert witness name each of the criminal street gang members or specify an occasion on which three or more criminal street gang members were together.

Castillo testified Brown Thugss primary activities were assault with a deadly weapon and vehicle theft, both qualifying offenses ( 186.22, subd. (e)(1), (10)). Castillo also testified that in March 2000, a Brown Thugs gang member, S.C.A., committed vehicle theft, and in June 2001, a Brown Thugs gang member, J.S., committed assault with a deadly weapon. Contrary to Melendezs claim, there is no requirement one of the predicate offenses must have occurred within three years of the charged offense(s). Although not overwhelming, this was sufficient evidence for the jury to reasonably conclude Brown Thugs was a criminal street gang as statutorily defined.

B. Benefit of a Criminal Street Gang

To establish a gang enhancement allegation, the prosecution must prove that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [Citations.] (People v. Williams (2009) 170 Cal.App.4th 587, 625, italics added, (Williams).)

Here, the prosecutor asked Castillo a hypothetical question mirroring the facts of the case. When the prosecutor asked him whether the offenses were done for the benefit of or in association with a criminal street gang, Castillo responded, it was done in association with gang members and for the benefit of a gang[] because the driver was a Brown Thugs gang member and the passenger was a Santa Nita gang member and gang members use stolen vehicles to commit other crimes. This was sufficient evidence for the jury to reasonably conclude the offenses were committed to benefit or in association with a criminal street gang. We now turn to whether there was evidence of Melendezs specific intent. We conclude there was not.

C. Specific Intent to Promote Criminal Street Gang

To establish a gang enhancement allegation, the prosecution must prove that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [Citations.] (Williams, supra, 170 Cal.App.4th at p. 625, italics added.) Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime. [Citation.] (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

Here, after the prosecutor provided Castillo with the hypothetical question, the prosecutor did not ask, and Castillo did not testify, how commission of the car theft would promote, further, or assist in any criminal conduct by gang members. Therefore, we must look to the evidence in the record to determine whether the jury could reasonably infer Melendez had the required specific intent to promote, further or assist Brown Thugs or Santa Nita gang members in the commission of the crime. The record includes no evidence Melendez stole Tripps vehicle in concert with known gang members. Rather, the evidence tended to establish she alone stole the vehicle. When Marty questioned her, Melendez claimed she stole the vehicle, and the prosecutor did not offer any other evidence demonstrating Diaz or any other gang member was involved in the theft. The fact Diaz fled when Marty initiated the traffic stop does not compel a contrary conclusion.

Additionally, the evidence tended to establish Melendez stole the vehicle so she and her family would have a place to sleep. When Marty asked her why she stole the car, Melendez explained it was because she and her boyfriend were homeless and they needed someplace to sleep. The items in the vehicle tended to support her claim. Inside the vehicle, officers found mens and womens clothes and toiletries, work tools, and childrens personal and school items. These items were more consistent with habitation than with a criminal enterprise. Moreover, there was no evidence Melendez or Diaz used the vehicle to commit any crime. And, officers did not find any weapons or indicia of gang membership in the car. The fact she gave Marty a home address does not persuade us otherwise as she said it was where her family resided and not where she resided.

Both parties rely on People v. Ramon (2009) 175 Cal.App.4th 843, to support their claims. In Ramon, officers stopped defendant, a self-admitted gang member, while he was driving a stolen vehicle within his gangs claimed territory with a fellow gang member in the passenger seat, and a loaded, unregistered firearm under the drivers seat. (Id.at pp. 846-848.) An expert gang witness testified the offenses would benefit his gang because by driving a stolen vehicle and possessing an unregistered firearm within his gangs territory, defendant could conduct numerous crimes and simply dump the vehicle and gun thereafter, having no ties to them. (Id.at pp. 847-848.) The court reversed the gang enhancements because the only evidence supporting an inference defendant committed the instant crimes with the specific intent to promote, further, or assist criminal conduct by gang members was the expert witnesss impermissible speculation of how he felt the case should be resolved. (Id. at p. 851.)

Melendez relies on Ramon to argue there is even less evidence here than in Ramon, and therefore that case requires reversal. The Attorney General relies on dicta in Ramon to contend that because vehicle theft was one of the primary activities of

Brown Thugs and Santa Nita, Ramon requires us to affirm. We agree with Melendez. The Ramon court concluded the gang experts testimony was too speculative because he gave a possible motive or reason for [defendant] being in possession of the stolen vehicle and gun[] and this did not prove this fact beyond a reasonable doubt. (Ramon, supra, 175 Cal.App.4th at p. 853.) Here too was Castillos testimony speculative as we explain more fully above. And aside from the lack of persuasiveness of dicta, the record before us supports the conclusion Melendezs primary activity was to find shelter for her and her family.

The Attorney General also relies on People v. Martinez (2004)

116 Cal.App.4th 753 (Martinez), to support its claim a defendants history of active participation in gang activities tends to satisfy the specific intent requirement. Martinez is inapposite as it did not involve section 186.22, subdivision (b)(1). It involved

section 186.30s gang registration requirement. (Martinez, supra, 116 Cal.App.4^th

at p. 753.)

There must be some evidence a defendant committed the offenses with the specific intent to promote, further, or assist gang members criminal conduct. As Castillo recognized, association with a criminal street gang is insufficient to sustain a conviction for street terrorism or a true finding on a street terrorism enhancement. (People v. Rodriguez (1993) 21 Cal.App.4th 232, 239 & fn. 2.) Substantial evidence does not mean any evidence, or a mere scintilla of evidence. It means evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Valdez, supra, 32 Cal.4th at p. 104.) Here, there was no evidence that was reasonable, credible, and of solid value from which a rational trier of fact could conclude Melendez took Tripps vehicle with the specific intent to promote, further, or assist Brown Thugs or Santa Nita criminal street gangs. We reverse the jurys true findings on the criminal street gang enhancements as to counts 1 and 2.

II. Restitution

Melendez claims the trial court erroneously ordered her to pay a portion of the restitution amount because Tripp did not establish the amount of loss for gasoline and a car wash. We disagree.

Section 1202.4 sets forth broad rules for the court to follow in determining victim restitution. It begins with a double-pronged requirement: (1) a victim who suffers economic loss as a result of a defendants conduct is entitled to restitution [citation]; and (2) the restitution ordered is to be based on the amount of loss claimed by the victim or victims or any other showing to the court. [Citation.] Full restitution is mandatory unless the court finds compelling and extraordinary reasons for not doing so, and states them on the record. [Citation.] A defendant is entitled to a hearing before a judge to dispute the determination of the amount of restitution. [Citation.] In determining the amount of restitution, the court is required to order a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendants criminal conduct. [Citation.] (People v. Fulton (2003)

109 Cal.App.4th 876, 885-886.) Thus, the statute requires the amount of restitution to be based on the loss claimed by the victim and the designated right of the defendant to a hearing to dispute the determination of the amount of restitution.

Here, the probation report indicated the restitution amount was unknown at that time. However, Tripp submitted a restitution claim form indicating she lost her iPod and iPod adapter, which had a value of $80. She also submitted a victim impact statement that stated her financial loss was those two items plus the loss of gasoline and having her car washed.

At the sentencing hearing, the trial court ordered Melendez to pay $140 in restitution for the lost items, gasoline, and cleaning. When defense counsel objected that the amount should reflect August 2007 prices, the court reduced the amount to $130. The court stated: I think that given what was found in that car, it may have taken -- it may not have been a matter of going through the drive-through car wash. I think it frankly required a lot more. Ill make it a $130, then in restitution. I think that is a fair estimation of what the victim lost, and the victim should be made whole.

Tripp stated her economic loss included gasoline and having her car washed, although she did not include amounts for those losses. Defense counsel did not dispute Tripp was entitled to restitution for those items but only that the amounts reflect August 2007 prices. The trial court reduced the restitution amount to reflect then current prices. We cannot conclude the court abused its discretion in ordering Melendez to pay restitution in the amount of $50 for gasoline and a car wash. (People v. Collins (2003) 111 Cal.App.4th 726, 733-734 [defendant did not produce any evidence challenging amount].)

DISPOSITION

We reverse the jurys findings on the street terrorism enhancements on counts 1 and 2, and affirm the judgment in all other respects.

OLEARY, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] All further statutory references are to the Penal Code, unless otherwise indicated.

[3] Count 4 concerned only Diaz. The trial court dismissed counts 3, 5, and 6.